{¶1}
Defendant-Appellant Larry Liggins appeals from his engaging
in a pattern of corrupt activity and drug trafficking
convictions entered in Sandusky County Common Pleas Court.
Appellant sets forth six arguments as to why his conviction
should be reversed. First, Appellant contends the trial court
erred in allowing the state to amend the indictment. Second,
he argues the jury instruction defining "engaging in a
pattern of corrupt activity" was incorrect and the trial
court incorrectly indicated he could be found guilty based on
the jury finding him guilty of a single underlying felony.
Third, Appellant asserts the state did not meet its burden of
production. Fourth, he contends the verdicts were against the
manifest weight of the evidence. Fifth, he argues he cannot
be guilty of a second-degree felony engaging in a pattern of
corrupt activity because he was not indicted for that offense
and that offense is not the lesser included offense of
first-degree felony engaging in a pattern of corrupt activity
(which was the indicted offense). Lastly, he asserts trial
counsel was ineffective and he was deprived of a fair trial.

{¶2}
The dispositive issue in this case is whether the state
presented sufficient evidence to support the conviction for
engaging in a pattern of corrupt activity. For the reasons
expressed below, we hold that it did not meet its burden of
production. The conviction for engaging in a pattern of
corrupt activity is reversed and the sentence for that crime
is vacated. The remaining convictions are affirmed.

Statement
of the Case and Facts

{¶3}
Appellant was indicted for one count of engaging in a pattern
of corrupt activity in violation of R.C. 2923.32(A) and five
counts of drug trafficking in violation of R.C. 2925.03.
9/23/15 Indictment. The engaging in a pattern of corrupt
activity charge was a first-degree felony and contained a
specification that at least one of the incidents of corrupt
activity was a felony of the first, second, or third-degree.
This charge also indicated the offense occurred between June
18, 2014 and July 30, 2014 and that the incidents of corrupt
activity were stated in the remaining charges of the
indictment. The five drug trafficking counts were for
differing degrees of felonies based on the weight of the
cocaine trafficked. The second count of the indictment was a
fourth-degree felony for an incident occurring on July 5,
2015. The third count was a fifth-degree felony for an
incident occurring on July 6, 2015. The fourth count was a
fifth-degree felony for a second incident occurring on July
6, 2015. The fifth count was a third-degree felony for an
incident occurring on July 17, 2015. The sixth count was a
third-degree felony for an incident occurring on July 20,
2015. The state filed a bill of particulars that was similar
to the indictment. 1/5/16 Bill of Particulars.

{¶4}
Appellant pled not guilty to the indictment. 9/25/15 J.E.
Prior to trial, the state dismissed count six of the
indictment and moved to amend the indictment pursuant to
Crim.R. 7. 4/13/16 Motion to Dismiss; 7/6/16 Motion to Amend
Indictment. In the motion to amend the indictment, the state
asserted there were typographical errors in counts two
through five. Those counts indicated the criminal activity
occurred in 2015; however, the indictment should have
indicated the activity occurred in 2014. 7/6/16 Motion to
Amend. The state moved to amend count two to indicate the
offense occurred on July 5, 2014, count three occurred on
July 6, 2014, court four occurred on July 6, 2014, and count
five occurred on July 17, 2014. 7/6/16 Motion to Amend. The
trial court granted the motion to amend. 7/7/16 J.E.

{¶5}
The jury trial commenced on July 14, 2016. At trial evidence
was submitted that Keith Nettles was the primary drug
trafficker in the Fremont, Sandusky County, Ohio area in
2014. Tr. 136. Various people worked for Nettles including
Appellant and Deborah Wolverton. During the Fremont Police
Department's and the Drug Task Force's investigation
of Nettles in 2014, they obtained a wiretap for his phone.
Various recorded phone calls were played for the jury during
the trial and it was stipulated at trial that one of the
numbers Nettles called was Appellant's. Wolverton also
testified at trial. She explained that Nettles was a drug
dealer, her boyfriend, and kept drugs at various locations in
her house and yard. Tr. 84, 91. She testified Appellant
delivered drugs to people for Nettles. Tr. 86. She identified
Nettles' voice and Appellant's voice on some of the
calls. She and Special Agent Mike Noel from the Toledo DEA
explained the terms used during the calls.

{¶6}
The first set of calls played for the jury were from July 5,
2014. Tr. 90-91, 139-140. The first two calls on that date
were between Nettles and Wolverton. Tr. 90-91, 139-140. They
were talking about "two 6's," which was
explained to be two packages of six grams of cocaine. Tr. 91.
The street value of "two 6's" is $600, which
means each 6 is $300. Tr. 140-141. Nettles told Wolverton to
get the drugs from her house and give them to Appellant and
Appellant would deliver them to Darnell at a bar called the
Copper Penny. Tr. 94-95. The next call played was a call
between Appellant and Nettles. Upon hearing this call,
Wolverton explained Nettles was telling Appellant that she
was supposed to give him something to deliver. Tr. 97.

{¶7}
The next set of calls played were from July 6, 2014. These
calls were between Nettles and Appellant. Tr. 98-100,
142-144. In the first two calls there was a reference to
"two baseballs" - "you got to get two
baseballs, one base - one, one baseball, the other want the
other baseball." Tr. 100. Wolverton explained a
"baseball" is three grams of crack similar to what
is also referred to as an "8-ball" and the street
value is $150 for one ball, baseball, or 8-ball. Tr. 100,
103. Agent Noel testified he had not heard of the term
"baseball" before, and that it is usually referred
to as a ball, which is 3.5 grams of cocaine. Tr. 152.
Following those calls, Appellant and Nettles talked again.
Tr. 145. In this call there was a statement that one of the
buyers wanted another one. Tr. 102, 145. The next call was
Wolverton to Nettles to see if she had permission to give
Appellant another 8-ball to deliver, which she did. Tr.
104-105, 146. The cost for these three 8-balls was $450. Tr.
105. Wolverton testified she personally handed the cocaine to
Appellant to deliver. Tr. 116, 122.

{¶8}
The next set of calls played for the jury were from July 17,
2014. Wolverton indicated these calls were between Nettles
and another male whose voice she did not recognize and one
call where Nettles was asking Appellant to go to his house.
Tr. 106-107. There was a discussion in one of the calls for
people to meet at Five Guys and the unknown male wants
"four." Tr. 109. Wolverton testified this meant the
unknown male wanted four 8-balls, which would cost $600. Tr.
110.

{¶9}
Appellant testified at trial. He contended the calls either
referred to him showing cars to potential buyers for Nettles
or to baseball tickets. He explained he did drive Nettles
places, but he also explained that Nettles sold cars and
Appellant would drive the cars to potential buyers so they
could see the cars. Tr. 175, 180, 198. Appellant stated he is
a baseball fan and Nettles got him tickets to a Detroit
Tigers baseball game. They could not attend the baseball game
so he was delivering the tickets to someone who could go. He
testified the reference to baseball was a reference to the
baseball tickets. Tr. 177-179.

{¶10}
The jury found Appellant guilty of counts one through four of
the indictment and not guilty of count five of the
indictment. Thus, the jury found Appellant guilty of one
fourth-degree felony drug trafficking offense, two
fifth-degree felony drug trafficking offenses, and engaging
in a pattern of corrupt activity. However, since the jury did
not find Appellant guilty of count five of the indictment, a
third-degree felony trafficking offense, it answered the
enhancement to count one in the negative. The jury stated the
state did not establish one of the incidents of corrupt
activity was a third-degree felony.

{¶11}
The court proceeded immediately to sentencing. The trial
court sentenced Appellant to 96 months for engaging in a
pattern of corrupt activity a second-degree felony. He
received 18 months for the fourth-degree felony drug
trafficking conviction and 12 months for each third-degree
felony drug trafficking conviction. All sentences were
ordered to be served concurrently for an aggregate sentence
of 96 months.

{¶12}
Appellant timely appealed the convictions. The third
assignment of error will be addressed first since it is
dispositive.

Third
Assignment of Error

"The
verdict under count one violates Liggins' due process
rights because it is not supported by sufficient evidence as
to the essential element of the monies involved exceeding $1,
000. Nor is the verdict supported by the weight of the
evidence."

{¶13}
This assignment of error raises both sufficiency of the
evidence and manifest weight of the evidence arguments.

{¶14}
This court has recently explained:

"Sufficiency and manifest-weight challenges are separate
and legally distinct determinations." State v.
Hatten,186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d
632, &para; 17 (2d Dist.), citing State v.
Thompkins,78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997). "A sufficiency of the evidence argument
challenges whether the State has presented adequate evidence
on each element of the offense to allow the case to go to the
jury or to sustain the verdict as a matter of law."
State v. Shaw, 2d Dist. Montgomery No. 21880,
2008-Ohio-1317, &para; 28, citing Thompkins at 387.
When reviewing for the sufficiency of the evidence, an
appellate court&#39;s function is to "examine the
evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the
defendant&#39;s guilt beyond a reasonable doubt."
State v. Jenks,61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. "The relevant
inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt." Id. "A
manifest weight of the evidence challenge contests the
believability of the evidence presented." State v.
Wynder, 11th Dist. Ashtabula No. 2001-A-0063,
2003-Ohio-5978, ¶ 23. When determining whether a
conviction is against the manifest weight of the evidence,
the appellate court must review the entire record, weigh the
evidence and all reasonable inferences drawn from it,
consider the witnesses' credibility, ...

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